Thursday, July 8, 2010

JUDGEMENT ALBERT LIM FOR PUBLIC VIEW

HAVE a pleasure reading the judgement before make your own judgement on Datuk Albert Lim Yu Ming, the man behind corruption enigma in Sabah.

MALAYSIAIN THE HIGH COURT IN SABAH AND SARAWAKAT KOTA KINABALU

CRIMINAL APPEAL NO.: K42-06-2006-II

BETWEEN

PUBLIC PROSECUTOR … APPELLANT

AGAINST

WONG CHONG SING … RESPONDENT

BEFORE THE HONOURABLE JUSTICE

DATUK CLEMENT SKINNER IN OPEN COURT

JUDGMENT

This is the Public Prosecutor’s appeal against the decision of the learned Sessions Court Judge given on 28.04.2006, acquitting and discharging Wong Chong Sing of a charge under s. 11(b) of the Anti-Corruption Act [1997] (‘the Act’). For convenience I will continue to refer to Wong Chong Sing as ‘the accused’.

In essence, the charge against the accused was that he had on 18.09.2000 at about 9.40 p.m., at the Coffee House of the Shangrila Hotel, Tanjung Aru, Kota Kinabalu, corruptly given to one Mohd. Jamidan Bin Abdullah, an Assistant Commissioner attached to the Anti-Corruption Agency Malaysia, a sum of RM100,000.00 as an inducement to stop investigations by the Anti-Corruption Agency into Syarikat Winterm Sdn. Bhd., and to not take any action against the company in relation to BPR Kota Kinabalu Report No. 28/2000.

At the close of the prosecution case during which nine (9) witnesses were called, the learned Sessions Judge found that RM100,000.00 had been paid to Mohd. Jamidan Bin Abdullah at the time and place stated in the charge. The learned Sessions Judge also found that the statutory presumption under s. 42(1) of the Act could be invoked to prove that the money was corruptly given for the purpose stated in the charge. The learned Sessions Judge accordingly found that a prima facie case had been made out against the accused and called him to enter on his defence to the charge.

The accused gave evidence on oath. He also called one (1) other witness. At the conclusion of the case, the learned Sessions Judge found that the accused had successfully rebutted the statutory presumption and had given an explanation which was consistent with his innocence regarding the RM100,000.00 allegedly handed over to Mohd. Jamidan Bin Abdullah. The learned Sessions Judge also said she entertained serious doubts about other aspects of the prosecution case, which led her to hold that the prosecution had not proved its case beyond reasonable doubt against the accused. She accordingly acquitted and discharged the accused of the offence charged. Hence this appeal.

The facts leading to the charge are these.

In 2000, the accused was working in a company in Tawau, Sabah called Syarikat Wintern Sdn. Bhd. (‘the company’). He was said to be a Manager of that company which was in the timber business. A complaint had been lodged with the Anti-Corruption Agency (‘the ACA’) about the company allegedly bribing officers of the Forestry Department and Police Force. Mohd. Jamidan Bin Abdullah (PW 1) headed a team of four (4) officers from the ACA headquarters who came to Sabah to assist in the investigations against the company.

On 22.06.2000, these officers went to Tawau. While these two of the officers, namely, Moses Anak Lawrence (PW 2) and Izani Bin Wan Ishak (PW 3) went to the offices of the company and conducted a search there. Initially the accused was not in the office when the officers arrived. He subsequently came to the office, after which the search commenced. From the locked cabinet the ACA officers seized certain documents, including payment vouchers which indicated that money had been paid to Forestry and Police officers at Keningau, Nabawan and Tawau.

When confronted with the payment vouchers, the accused informed the ACA officers that he had no knowledge of them as he had just taken over duties in the company. He informed them that they should speak to another Manager of the company’s Keningau operations called Tie Teck Yu. The ACA officers then requested the accused to arrange for Tie Teck Yu to come from Keningau to Tawau to assist in the investigations.

On 23.06.2000, Tie Teck Yu and the accused went to Hotel Emas, Tawau to meet PW 1, PW 2 and PW 3. On being questioned on the payment vouchers allegedly evidencing payment made to Forestry and Police officers, Tie Teck Yu admitted to the ACA officers that the payment vouchers were written up to give the impression that money had been paid to government officers but in actual fact he had used the company’s money ‘untuk enjoy’. The payment vouchers were prepared by a Clerk named Stephen Pang who the ACA wanted to interview but could not contact as he had resigned from the company and could not be located. Mohd. Jamidan Bin Abdullah (PW 1) said he realized then that he was dealing with a case of criminal breach of trust. On 26.06.2000, he and his team left for Kuala Lumpur.

On 08.09.2000, PW 1 and his team returned to Tawau. On meeting the accused on this occasion, PW 1 alleged that the accused had asked that the ACA speed up investigations and, if possible, the case be closed and documents seized from the company be returned, especially logging licences and agreements, but PW 1 informed him that statements would have to be taken from the three (3) Directors of the company.

On 12.09.2000 at the request of PW 1 and PW 3 the accused went to meet them at the Hotel Emas, Tawau at about 10.00 p.m. when certain documents which were not essential to the investigations were returned to the company through the accused.

On 13.09.2000, the company’s Directors were called to the ACA’s offices at Tawau for their statements to be recorded. They were Datuk Albert Lim Yu Ming (PW 6), Lim Piak Chu (PW 7) and Chia Soo Kung. PW 1 recorded the statement of Lim Piak Chu and Chia Soo Kung, while PW 2 recorded Datuk Albert Lim Yu Ming’s statement.

While PW 1 was recording Lim Piak Chu’s statement the latter is alleged to have asked PW 1 to speed up investigations and close the case against the company as well as Tie Teck Yu in relation to the allegations of corruption and criminal breach of trust, in return for which he (PW 1) would be paid RM100,000.00. In response to this offer of a bribe, PW 1 said he informed Lim Piak Chu that he would need to study the case first.

Later that day, PW 2 recorded the accused’s statement at Hotel Emas. When the recording was over at about 5.00 p.m. and on PW 1 and PW 3 returning to the hotel, the accused informed them that the Directors of the company had invited them for dinner, which the ACA officers accepted. After the accused had left, PW 1 informed PW 3 about Lim Piak Chu’s offer of a bribe earlier on in the day while he was recording Lim Piak Chu’s statement.

On the night of 13.09.2000, the following persons were present for dinner at a seafood restaurant in Tawau. From the company’s side were the accused and the three (3) Directors i.e. Datuk Albert Lim Yu Ming (PW 6), Lim Piak Chu (PW 7) and Chia Soo Kung. From the ACA’s side were PW 1, PW 2 and PW 3. During the dinner, PW 1 said he informed the company’s side that investigations into the company would proceed as usual and that Stephen Pang who had prepared the payment vouchers needed to be located. In reply, the company’s side requested the ACA to help speed up investigations and for the case to be closed.

After the dinner, PW 1 said Datuk Albert Lim Yu Ming (PW 6) came up close to him and repeated the offer Lim Piak Chu had made to PW 1 earlier in the day, namely, that the Board of Directors of the company were willing to pay PW 1 RM100,000.00 for the case to be closed. PW 1 also said that Lim Piak Chu told him that the accused had been tasked with handing over the RM100,000.00 to PW 1.

On 14.09.2000, PW 1 lodged an ACA report (Exh. P 5) to the effect that on 13.09.2000 he had been offered a bribe of RM100,000.00 by Lim Piak Chu of Syarikat Wintern Sdn. Bhd., to stop the investigations into the company by the ACA.

On the night of 14.09.2000, the accused again had dinner with PW 1, PW 2, PW 3 and another ACA officer Salatakhamswan Bin Abd. Latif (PW 8). After the dinner, the accused went to PW 1’s hotel room. It is alleged by PW 1 that while in his room the accused spoke to him about the offer that had been made to him (PW 1) which PW 1 understand to mean that the accused would be the person who would hand over the RM100,000.00 to PW 1.

On 15.09.2000, PW 1 and his team left for Sandakan but instructed PW 3 to contact the accused to locate Stephen Pang.

On 16.09.2000, PW 1 and his team arrived back at Kota Kinabalu and stayed at the Marina Court Condominium. PW 3 said he spoke to the accused who informed him that the latter would be coming to Kota Kinabalu.

On 17.09.2000, PW 1 said he spoke to Datuk Albert Lim Yu Ming (PW 6) who reassured him of the company’s offer of RM100,000.00 and that the accused would contact PW 1 on the matter. PW 1 said he also spoke over the phone with the accused who was then in Tawau and was informed by the accused that the latter would come to Kota Kinabalu with the RM100,000.00 on 18.09.2000. While in Kota Kinabalu the accused would stay at the Promenade Hotel, and arrange to hand over the money to PW 1.

Early on the morning of 18.09.2000, two ACA officers from Sarawak, namely, Razim Bin Mohd. Noor (PW 4) and Ahmad Arif Bin Mahidin (PW 5) were instructed to come to Kota Kinabalu to assist the ACA here in this case.

At about noon on 18.09.2000, the accused rang PW 1 to say he was in Kota Kinabalu but was not staying at the Promenade Hotel; he was at the Tang Dynasty Hotel and arranged to meet at the coffee house of the hotel.

At about 2.00 p.m. on 18.09.2000, PW 1 and PW 3 met the accused at the coffee house of the Tang Dynasty Hotel. The accused had with him a plastic bag containing a moon cake box. The accused is alleged to have asked PW 1 whether PW 1 liked moon cake, showing PW 1 the contents of the moon cake box which PW 1 said contained money. According to PW 1 the accused said that that was the money promised by the Directors of the company, but PW 1 said he informed the accused that he (PW 1) could not receive the money there as it was too ‘open’. PW 1 said the accused kept insisting that PW 1 should take the money as he (the accused) wanted to return to Tawau on the 4.30 p.m. flight but PW 1 said he made excuses to avoid receiving the money there as he was not yet ready with a plan to arrest the accused for offering the bribe. The accused is then alleged to have said that he will contact PW 1 about handing over the money and enquired where the ACA officers were staying and was told that they stayed at the Marina Court Condominium.

At about 4.30 p.m. on 18.09.2000, the ACA officers assembled at an apartment at the Marina Court Condominium to be briefed about a plan to arrest the accused when he handed over the money. By then PW 4 and PW 5, the two ACA officers from Sarawak had arrived. They too attended the briefing. At about 5.30 p.m. PW 3 received a phone call from the accused. He informed the accused that the meeting could take place at the Shangrila Hotel, Tanjung Aru and to come to the condominium to pick up the ACA officers. According to PW 5, at about 6.00 p.m. the briefing on the trap was given by Mohd. Yatim Bin Hashim (PW 9) who was the Investigating Officer of the case. The plan was that PW 4 and PW 5 would arrest the accused upon him giving the money to PW 1 or PW 3. According to PW 3, he was handed a tape recorder and instructed by PW 9 to record the conversation during the meeting with the accused that evening.

According to PW 1, the accused came in a taxi to fetch him and PW 3 from the apartment at about 7.30 p.m. on 18.09.2000, after which they proceeded to the Shangrila Hotel at Tanjung Aru and took a seat at a table outside the coffee house.

During dinner which lasted about two (2) hours, the accused is alleged to have told PW 1 and PW 3 that the Directors of the company were embarrassed by the ACA investigations and had agreed to pay RM100,000.00 to close the investigations. PW 1 said that after he received confirmation from the accused that the Directors of the company wanted him to close the investigations into the company, he instructed the accused to phone up each of the Directors in turn so that he could personally get their confirmation, which the accused did do. PW 1 said he spoke to each of the Directors who admitted that they had each contributed to a portion of the money to be paid to PW 1. Following the telephone conversation, the accused is alleged to have asked PW 1 to accept the money which was in the moon cake box in the plastic bag, placed on a seat next to the accused. When PW 1 and PW 3 kept silent the accused is alleged to have persuaded them to take the money. Finally, PW 1 asked PW 3 to open the moon cake box. On PW 3 doing so PW 1 said he saw RM100.00 notes tied in rubber band which the accused allegedly said amounted to RM100,000.00. PW 1 said he then informed the accused that he would let the accused know about the position of the case and then left with PW 3 who had taken possession of the plastic bag and moon cake box containing the money. The accused was then arrested by the ACA officers after he settled the bill at the coffee house.

After the arrest, the ACA officers proceeded to the ACA office where the money was counted and the serial numbers of the notes recorded. PW 3 said he handed over the tape recording (EXh. P 7) to PW 8 at the ACA office: PW 8 broke the safety pin of the tape and made a duplicate copy of the tape (Exh. P 9) while the original was handed to PW 9 the Investigating Officer. PW 8 later made a transcript (Exh. P 10) of the conversation recorded on the tape. According to PW 8 each side of the tape could record conversation lasting 60 minutes but he found that Side A of the tape (Exh. P 9) only contained 30 minutes of conversation. PW 3 confirmed that he had used a “Sony MC 60” tape and had used the whole of Side A to record the conversation. But the evidence shows that only part of the conversation was recorded.

In her judgment, the learned Sessions Judge said that having listened to the taped conversation in Court and having read the transcript produced, it could not be said that the accused was trying to impede PW 1’s investigations into the case and that the accused’s meeting with PW 1 was not of his own volition but at the orders of his bosses. The learned Sessions Judge further noted that there was no mention of a moon cake box or the sum of RM100,000.00 at all in the tape. It is important to note however that the learned Sessions Judge eventually ruled at the conclusion of the case that the tape recording and the transcript were inadmissible in evidence and could not be acted on.

The evidence of two other prosecution witnesses deserves mention now. Two of the Directors of the company, namely, Datuk Datuk Albert Lim Yu Ming (PW 6) and Lim Piak Chu (PW 7) were called as prosecution witnesses. In their evidence in chief, both PW 6 and PW 7 testified that they had not tried to bribe the ACA officers nor had they given any money to the accused to give to the ACA officers to stop their investigations into the company. In his cross-examination, PW 6 said that even though he had spoken to PW 1, there was no conversation between them relating to the offer of RM100,000.00 for PW 1 to close the case against the company. It was PW 6’s testimony in his cross-examination that PW 1 was lying in his evidence on the matter. In fact in his cross-examination, PW 6 gave evidence about what the RM100,000.00 seized from the accused was meant for. PW 6 testified in answer to questions put to him on behalf of the defence case, concerning a company called Idris Hydraulics Berhad, that the company was a sub-contractor to Idris Hydraulics Berhad who had a forest concession and that the company was required to pay Idris Hydraulics Berhad a sum of RM100,000.00 in connection with a comprehensive survey done in the concession area. PW 6 said the RM100,000.00 was to be paid to Idris Hydraulics Berhad on 18.09.2000 and that the accused was given the RM100,000.00 by the Directors of the company to pay over to Idris Hydraulics Berhad.

PW 7 on his part also confirmed during his cross-examination that the company owed Idris Hydraulics Berhad RM100,000.00 for a comprehensive harvesting plan. PW 7 further stated in his cross-examination that he had never spoken to PW 1 over the phone on the night of 18.09.2000, contrary to the testimony of PW 1 that he had done so to confirm from each of the Directors of the company that they had contributed to the RM100,000.00 bribe to be paid to him. So much for the evidence led in the prosecution case.

When the accused was called to enter on his defence he explained that he was a Director and Manager of a company called Pakatjaya Sdn. Bhd., of which Datuk Albert Lim Yu Ming (PW 6) was also a Director. The accused explained that although in the cautioned statement he had given to the ACA he had described himself as the General Manager of the company, he said he described himself as such as he did not know better then. However, the accused explained that after informing his lawyer that he was not given a letter of appointment as a General Manager from the company nor was he paid by the company nor did the company pay his EPF contributions, he was advised by his lawyer that he was not employed by the company. That is why he described himself in Court as not employed by the company. But when the ACA raided the company the accused said that it was they who looked for him and he cooperated with the ACA in locating the Directors of the company who the ACA wanted to meet.

The accused also testified that on one of the occasions when he went to the ACA office, PW 1 had pulled him aside and said that the Directors of Wintern Sdn. Bhd. were very rich and that if he (PW 1) asked them for RM500,000.00 they would give it to him (PW 1). The accused said that when PW 1 told him this, he replied that he was unaware of this and that PW 1 should discuss the matter with the Directors themselves.

The accused also testified that on another occasion, PW 1 had called him to PW 1’s hotel room and repeated that if he (PW 1) asked for RM500,000.00 from the Directors of the company, they were willing to pay that amount to him, but the accused said that he again told PW 1 that if that was the case, he (PW 1) should discuss the matter directly with the Directors themselves.

With regard to his meeting with PW 1 and PW 3 at the Tang Dynasty Hotel coffee house on 18.09.2000 and why he had the moon cake box with money in it, the accused explained that on 17.09.2000 Datuk Albert Lim Yu Ming (PW 6) had handed him the moon cake box containing the RM100,000.00 and asked him to deliver the money to Tie Teck Yu of Wintern Sdn. Bhd., so that the company could pay for the Comprehensive Harvesting Plan. According to the accused, he travelled to Kota Kinabalu but on arriving here Tie Teck Yu who was from Keningau phoned to say that he was unable to meet the accused, so the accused who was not supposed to stay in Kota Kinabalu contacted Datuk Albert Lim Yu Ming (PW 6) over the phone to inform him of the situation. On contacting Datuk Albert Lim the accused was informed by the former that the ACA wanted to meet with Datuk Albert Lim but since he (Datuk Albert Lim) was unable to do so, the accused should instead meet the ACA officers. So the accused said that he got in touch with PW 1 and PW 3 and arranged to meet them at the Tang Dynasty Hotel coffee house. The accused further explained that as the room he was staying in at the Tang Dynasty did not have a safe deposit box, he did not want to leave the money in the room while he was out so he took along the money in the moon cake box to the meeting with PW 1 and PW 3.

On meeting PW 1 and PW 3 at the Tang Dynasty Hotel coffee house, the accused said PW 1 asked him whether Datuk Albert Lim had given the accused some money to pass to PW 1, but the accused said he informed PW 1 that Datuk Albert Lim had not done so. The accused said that PW 1 asked him about the money which the accused’s boss had asked the accused to deliver to PW 1 but the accused said he did not agree that the money with him was for PW 1 as it was meant for Tie Teck Yu for the Comprehensive Harvesting Plan. The accused said that after talking about Stephen Pang and Tie Teck Yu, PW 1 again raised the subject of Datuk Albert Lim having agreed to give him (PW 1) money but the accused said that he did not agree with PW 1 as he had never been informed of this by his boss. The accused said he then informed PW 1 and PW 3 that he intended to return home but they invited him out for dinner at a time to be fixed by them, so the accused said he contacted Datuk Albert Lim to inform him that he was unable to return to Tawau. The accused also said he questioned Datuk Albert Lim as to why PW 1 had kept saying to the accused that the money was meant for him (PW 1)? The accused said Datuk Albert Lim replied that he had never agreed to give any money to PW 1 but that if PW 1 insisted that Datuk Albert Lim had agreed to give the money to him, then let PW 1 take the money himself to which the accused told Datuk Albert Lim that he wanted nothing to do with it.

The accused then said that later that day, as arranged with PW 1 and PW 3, he went in a taxi to pick them up before proceeding to the Shangrila Hotel coffee house for dinner. According to the accused, while in the taxi, PW 1 again asked him about the money to which the accused said he informed PW 1 that as far as he (the accused) was concerned, if the Directors of the company wanted to give PW 1 the money, it had nothing to do with him (the accused), and that he did not want to interfere in the investigations which PW 1 should just go ahead with.

The accused said that during the dinner at the Shangrila Hotel coffee house which lasted till about 9.30 p.m., PW 1 had brought up the subject about the money being for him at least 5 times and each time the accused said he informed PW 1 that he had nothing to do with the payment of money to PW 1 and that it was the company and not him who was under investigations. The accused said PW 1 was insistent that the money was for him and asked the accused to call the Directors of the company. The accused said he phoned all the Directors except for Lim Piak Chu, and PW 1 spoke to them. After speaking to the Directors, the accused said PW 1 informed him that the Directors had agreed to give him (PW 1) the money to which the accused informed PW 1 that if that was so, then its okay, it was none of the accused’s business as it was between PW 1 and the Directors. After that the accused said PW 1 instructed PW 3 to take the money which was in the moon cake box, which had been placed on an empty seat at the table. PW 3 did so, after with the accused was arrested.

When the accused was cross-examined, the prosecution tendered the accused’s cautioned statement as an exhibit in an effort to impeach his credit for saying that he was not employed by the company. However, the prosecution did not confine itself to the passages in the cautioned statement which was being relied on to contradict the evidence of the accused, but went on generally to cross-examine the accused on other areas of his statement as well. By so doing the learned Sessions Judge held that the defence was also entitled to rely on the accused’s cautioned statement like any other exhibit before the Court.

The learned Sessions Judge found that the accused had satisfactorily explained the inconsistency between his cautioned statement and his testimony in Court about his status in the company. The learned Sessions Judge accepted the accused’s explanation that he said he was not employed by the company as he had followed his lawyer’s advice that since the company did not give him a letter of appointment nor pay his salary or EPF contributions, he was not regarded as an employee of the company. Accordingly, the learned Sessions Judge found the prosecution’s attempt to impeach the credit of the accused had come to naught.

In support of his defence, the accused called Tie Teck Yu (DW 2) as a witness. DW 2 testified that on 18.09.2000, he was supposed to meet the accused together with a Mr. Francis of Idris Hydraulics Berhad so as to hand the RM100,000.00 over to Idris Hydraulics Berhad for the Comprehensive Harvesting Plan. However, Mr. Francis cancelled the appointment. So DW 2 said he contacted the accused in the afternoon of 18.09.2000 and requested the accused to keep the money first as Idris Hydraulics Berhad had cancelled the appointment. The prosecution did not cross-examine DW 2 at all on his entire testimony. The consequence of not doing so, as the learned Sessions Judge stated in her judgment was that the prosecution had accepted the truth of DW 2’s evidence in the absence of any explanation given by the prosecution as to why his evidence was not cross-examined on i.e. the story itself was incredible or of a romancing character or for reasons of delicacy or to avoid repetition of questions.

For all the reasons set out by the learned Sessions Judge in her judgment, she found that the explanation given by the accused for having the RM100,000.00 with him on 18.09.2000, namely, that as far as he was concerned, the money was meant to be handed over to Idris Hydraulics Berhad through Tie Teck Yu (DW 2) and not meant as a bribe for PW 1, was an explanation consistent with his innocence. Accordingly, the accused was acquitted and discharged of the charge.

The Public Prosecutor has raised many grounds of appeal in the Petition of Appeal but at the hearing combined the grounds under six broad heads of appeal. I will now consider each of them.

1. The learned Sessions Court Judge erred when she acquitted and discharged the respondent when she decided that the accused had succeeded in rebutting the presumption under s. 42 of the Act on a balance of probabilities although it was against the weight of evidence adduced.

The contention here is that the finding of the learned Sessions Judge was against the weight of evidence because according to the prosecution, the conduct and actions of the accused throughout the investigations starting with the search by the ACA officers at the offices of the company in Tawau until the passing of the money at the Shangrila Hotel at Tanjung Aru shows that the accused had the intention to give the money corruptly to PW 1. According to the prosecution, the evidence adduced in the prosecution case showed that the accused had taken an active part in offering the corrupt money, arrange the meetings and finally giving the money to PW 1. The prosecution contends that the learned Sessions Judge’s finding that the accused was an “unwilling participant” in the giving of the money is against the weight of evidence which shows that the accused had played an active part in the case and had repeatedly insisted on PW 1 taking the money in the moon cake box.

I do not agree with this contention. A pertinent question to ask is what did the weight of the evidence adduced in the prosecution case show? If the evidence of the prosecution’s two main witnesses i.e. PW 1 and PW 3 is to be believed, then their evidence shows that it was not the accused but the Directors of the company that initiated the offer of the bribe and that the accused’s role was merely to deliver that corrupt money but there is no evidence that the accused was aware of the offer of the bribe to PW 1 or that he supposed to deliver the corrupt money. That this is so is clear from the evidence of PW 1 who testified that it was Lim Piak Chu (PW 7) who made the corrupt offer to PW 1 while PW 7’s statement was being recorded on 13.09.2000, leading to PW 1 lodging an ACA report on the matter and later informing PW 3 of it. There is no evidence before the Court that prior to this offer from PW 7, the accused had ever offered any corrupt money or bribe to any ACA officers. In fact the evidence shows that when the ACA officers first visited the office of the company on 22.06.2000 and the accused was confronted with the payment vouchers relating to civil servants found in the locked cabinet at the office, his reaction was that he knew nothing about the matter and that the ACA officers should speak to Tie Teck Yu (DW 2) about it. When the ACA officers did speak to Tie Teck Yu, he admitted to using the company’s money for his own purposes. PW 1 said he then knew he was dealing with a case of criminal breach of trust. There is no evidence that the accused was implicated in any way with the alleged corrupt payments to the government officers.

The weight of the evidence in the prosecution’s case given by PW 1 also shows that after the initial offer of a bribe was made by Lim Piak Chu (PW 7) to PW 1, it was allegedly repeated to PW 1 by Datuk Albert Lim Yu Ming (PW 6) after the dinner on 13.09.2000 and it was PW 6 who informed PW 1 that the accused would be the deliverer of the corrupt money, but there is no evidence that when Datuk Albert Lim Yu Ming (PW 7) went up close to PW 1 and spoke to him on the above matters, the accused was present or could hear their conversation. Further, there is no evidence that the accused was aware of the offer of a bribe made by Lim Piak Chu to PW 1 while the former’s statement was being recorded, or that that offer had been repeated by Datuk Albert Lim to PW 1 after the dinner on 13.09.2000 or that the accused was informed by either Datuk Albert Lim (PW 6) or Lim Piak Chu (PW 7) or any other Director of the company that he (the accused) had been assigned to deliver the corrupt money to PW 1.

In the light of the above facts how can it be said that the learned Sessions Judge’s finding that she accepted the explanation given by the accused for having the money on 18.09.2000 i.e. that it was meant to be handed to Tie Teck Yu for payment to Idris Hydraulics Berhad, against the weight of evidence? In my view it cannot be so said.

The only evidence that the accused knew that the money in the moon cake box was for a corrupt purpose came from the testimony of PW 1 who said that the accused had, at the Tang Dynasty coffee house asked him whether he liked to eat moon cake and opened the box to show him the contents (which PW 1 saw was money), saying it was the money promised to PW 1 by the Directors of the company.

But the accused in his testimony denied that he had offered such money to PW 1 at the Tang Dynasty Hotel coffee house, saying that it was in fact PW 1 who had asked him if Datuk Albert Lim Yu Ming (PW 6) had sent some money for PW 1, to which the accused had replied ‘No’ and that the money was for Idris Hydraulics Berhad.

With regard to the conflict in the version of the story told by the prosecution and defence about what transpired at the Tang Dynasty Hotel coffee house, the learned Sessions Judge obviously preferred or accepted the story of the accused as she held that the accused’s explanation was consistent with his innocence. Was the learned Sessions Judge wrong in doing so? Was her finding against the weight of evidence? I do not find so for the following reasons.

Quite apart from the feet that no direct evidence or evidence from which it may be inferred was led in the prosecution case to show that prior to his meeting with PW 1 and PW 3 at the Tang Dynasty Hotel the accused already knew or was made aware that Datuk Albert Lim and Lim Piak Chu had made an offer of a bribe to PW 1 and that Datuk Albert Lim had informed PW 1 that the accused would be used to deliver the money, the accused’s version is supported by the following evidence appearing in the prosecution case itself.

Both Datuk Albert Lim and Lim Piak Chu were called as prosecution witnesses and put forward as witnesses of truth. They stated on oath that they had never offered or suggested paying a bribe to the ACA officers, which would naturally include PW 1. Datuk Albert Lim had also categorically stated that PW 1 had lied about him (Datuk Albert Lim) making an offer of a bribe. Both Datuk Albert Lim and Lim Piak Chu had also confirmed that the RM100,000.00 was for payment to Idris Hydraulics Berhad, and, Datuk Albert Lim stated in his cross-examination that the accused had been instructed by the Board of Directors to pay the RM100,000.00 to Idris Hydraulics Berhad. Now, this evidence of the prosecution’s own witnesses must be considered in the light of Tie Teck Yu’s (DW 2’s) evidence that he was supposed to meet the accused on 18.09.2000 to collect the RM100,000.00 so that it could be paid to Mr. Francis of Idris Hydraulics Berhad but because the latter had cancelled the appointment, he (Tie Teck Yu) had asked the accused to hold onto the money. Even further still, the accused’s version must be considered in the light of the following additional facts, namely, that Tie Teck Yu’s evidence was not cross-examined on at all and must therefore be accept as true by the prosecution; that the accused was not implicated in any way with the alleged corrupt payments made by Tie Teck Yu to the government officers; that when the money eventually passed hands at the Shangrila Hotel, it took place only after the accused had on the instructions of PW 1 telephoned the Directors of the company, PW 1 had spoken to the Directors; and PW 1 telling the accused that the Directors had agreed to giving him (PW 1) the money. And even then it was not the accused who handed over the money to PW 1 but it was PW 1 who instructed PW 3 to take possession of the moon cake box placed on a chair at the table they were sitting at.

In the light of all the above evidence and facts which support the accused’s version of what the money in the moon cake box was meant for, I find that the learned Sessions Judge’s finding was not against the weight of evidence as alleged. The prosecution says that the accused took an active part in the commission of the offence. I do not agree. Whilst the evidence shows that the accused did at the request of the ACA officers extend his cooperation in the investigations by contacting the persons the ACA officers wanted to interview and acting as a channel for communications between the ACA officers and the company, it does not follow as a matter of course that because he had done these various things he had taken an active part in the commission of the offence as alleged. In the light of the evidence I have discussed earlier, there is no basis to even infer that the accused knew that the money in the moon cake box was intended for a corrupt purpose and therefore it cannot be said that the accused had taken an active part in the commission of the offence as alleged.

The prosecution also submitted that the learned Sessions Judge had failed to consider that the accused’s story that the money in the moon cake box was meant for Idris Hydraulics Berhad was a story that was inherently improbable as according to the prosecution, this was not the way business was normally conducted between companies. According to the prosecution, the payment of the money to Idris Hydraulics Berhad could have easily been transacted through the bank. I see nothing in the point taken. Contrary to what the prosecution says, the learned Sessions Judge did consider the point taken. In her grounds of judgment, the learned Sessions Judge said:

“Though I have to say that the act of carrying a large amount of money in a moon cake box is undoubtedly unusual and perhaps to a certain degree suspicions, however, on the totality of the evidence as I have already discussed, and in view of the Federal Court pronouncement in Mohd. Amin Mohd. Razali & Ors. v PP & Anor [2003] 3 CLJ 425 that ‘suspicions regardless of its degree is not evidence’, I cannot convict the accused based on mere suspicions”.

I do not think that the learned Sessions Judge can be faulted for her reasoning on the point. For myself, I would say that the particular method by which a company chooses to pay or settle its creditors is an internal matter for the Directors of that particular company to decide. The prosecution led no evidence to show how “business was normally conducted between companies” and therefore there is no basis for its submission that it is inherently improbable that the accused would be carrying such a large sum of money in a moon cake box.

The prosecution also submitted that since the accused had said that he was not an employee of the company, why would he agree to deliver the RM100,000.00 on behalf of the company to Idris Hydraulics Berhad? I see nothing in the point taken. The accused did explain that even though he was not formally appointed by the company as its General Manager, he had recently taken over the functions of the previous manager. He also explained that Datuk Albert Lim Yu Ming (PW 6) was also a Director along with the accused in Pakatjaya Sdn. Bhd., and it was Datuk Albert Lim also had instructed him to deliver the money to Idris Hydraulics Berhad. Accordingly, I find that in those circumstances there is nothing wrong in the accused acting on instructions given by Datuk Albert Lim.

The prosecution also contended that the learned Sessions Judge should not have relied on the accused’s cautioned statement in acquitting and discharging him as the statement was exculpatory and self serving in nature. I do not think this is an accurate description of how the learned Sessions Judge used the accused’s cautioned statement. A reading of her judgment shows that the learned Sessions Judge did not rely solely on the cautioned statement to acquit the accused. Clearly the learned Sessions Judge had referred to it as one only of the several matters she referred to in her judgment which led her to find that the accused’s explanation about why he had he money in the moon cake box with him on 18.09.2000 and why he met PW 1 and PW 3 twice that day and the circumstances in which the money was taken away by PW 3 on the instructions of PW 1, was consistent with his innocence.

For all the above reasons, I find that the learned Sessions Judge’s finding is not against the weight of evidence in this case.

2. The failure on the part of the accused to call witnesses from Idris Hydraulics Berhad.

This heading covers ground 3.4 and 3.14 of the Petition of Appeal. It was contended by the prosecution that the learned Sessions Judge should have found that the accused should have called witnesses from Idris Hydraulics Berhad to confirm and support his defence. According to the prosecution, since the accused had not done so, no weight should have been attached to his defence. I do not agree. The defence case that the RM100,000.00 which was being carried around by the accused on 18.09.2000 was money meant for Idris Hydraulics Berhad was already disclosed by the defence during the prosecution case itself through the cross-examination of Datuk Albert Lim Yu Ming (PW 6) and Lim Piak Chu (PW 7) on the point. Further, when the prosecution did not challenge in any way the evidence given by Tie Teck Yu (DW 2) about the money being meant for Idris Hydraulics Berhad, whether by way of cross-examination or an explanation being given to the Court that DW 2 was not being cross-examined for reasons of delicacy of his evidence, what DW 2 had said about the RM100,000.00 in the possession of the accused on 18.09.2000 being meant for Idris Hydraulics Berhad must be accepted by the prosecution as being true. (See Wong Swee Chin v PP [1980] 1 LNS 138; PP v Leong Hoe Cheong [1990] 2 CLJ 818. See Phipson on evidence 14th Edn page 247).

Since the prosecution had not challenged in any way the evidence given by Datuk Albert Lim and Tie Teck Yu about what they had said about the money being meant for Idris Hydraulics Berhad, there was no reason why the learned Sessions Judge should not give to the accused’s, Datuk Albert Lim’s, Lim Piak Chu’s and Tie Teck Yu’s evidence, the full weight that such evidence deserved without having to call any witnesses from Idris Hydraulics Berhad to confirm the same thing.

3 and 4. The manner in which the ACA officers went about conducting investigations into the case and lodging reports.

It is the complaint of the prosecution that the learned Sessions Judge had been critical of the way in which the ACA officers had attended dinners with the officers of the very company it was investigating into. Further, the learned Sessions Judge had also questioned why the ACA officers did not have sufficient time to plan the arrest of the accused when he allegedly offered PW 1 the money at Tang Dynasty Hotel on 18.09.2000, despite the fact that the evidence showed that even from 16.09.2000 the ACA officers already knew the accused was coming to Kota Kinabalu on 18.09.2000. The prosecution says that how the ACA officers chose to go about gathering evidence and when to arrest a person or when to lodge a report against a person or who a report should be lodged against are matters which are best left to the ACA officers themselves to decide in the discharge of their duties. I agree. But this does not mean that the learned Sessions Judge was not entitled to take into account the conduct of the ACA witnesses who come to testify about their investigations into the offence charged, when weighing up and testing the whole of the evidence adduced by either side in the case before her, which was what the learned Sessions Judge was doing when she made the critical assessment complained of by the prosecution. I do not think the learned Sessions Judge can be faulted in having done so.

5. The failure of the learned Sessions Court Judge to consider evidence favorable to the prosecution and failure to consider the relationship between PW 6, PW 7 and the accused.

This heading covers grounds 3.16, 3.17 and 3.21 of the Petition of Appeal.

It was the complaint of the prosecution that the learned Sessions Judge had failed to take into account evidence given by the accused himself which favoured their case against him. According to the prosecution, the accused had been asked the following question:

“Q : What did Albert Lim say?

A : Albert Lim say he never agreed to give money to them. Albert Lim said if they insist in saying that I agree to give the money the let them take the money themselves”.

According to the prosecution, the above evidence goes against the evidence of Datuk Albert Lim (PW 6) and lends credence to the evidence of PW 1 that Datuk Albert Lim had agreed to bribe him and the money was to be paid through the accused. According to the prosecution, the learned Sessions Judge had failed to consider this material evidence. I do not agree. I do not agree that the above evidence is favourable to the prosecution case or that it supports PW 1’s evidence that Datuk Albert Lim had agreed to bribe him. Whilst it was PW 1’s evidence that Lim Piak Chu (PW 7) and later Datuk Albert Lim (PW 6) had offered him the bribe, both PW 7 and PW 6 had flatly denied PW 1’s allegation during the prosecution’s own case. The prosecution had never tried to impeach their evidence or discredit this part of their evidence and therefore the prosecution had accepted what they said as the truth and as apart of its own case, which contradicts the evidence of PW 1. Further, when the accused said in his evidence that “Albert Lim said he never agreed to give the money to them. Albert Lim said if they insist on saying that I agreed to give the money to them let them take the money themselves”, what the accused said was far from favourable to the prosecution case because the accused was in fact confirming what Datuk Albert Lim had said as part of the prosecution evidence, namely, that he had never offered to bribe PW 1. Further still, the prosecution seems to have overlooked the fact that Datuk Albert Lim had said to the accused “if they insist in saying…..” meaning that Datuk Albert Lim was denying that he had agreed to bribe PW 1 but “if they insist” that he had said so, “then let them take the money themselves”. Contrary to what the prosecution contend, the above evidence of the accused does not go against Datuk Albert Lim’s (PW 6’s) evidence and lend credence to PW 1’s evidence. In fact it has just the opposite effect.

The prosecution also complained that the learned Sessions Judge failed to consider that the accused, PW 6 and PW 7 were all in the same company and yet she had uncritically accepted their evidence. I do not think the learned Sessions Judge can be faulted for having done so in view of the fact that it was the prosecution itself that had led evidence from PW 6 and PW 7 during their evidence in chief that they had not offered a bribe to any ACA officers.

6. There was no need for the company to bribe any ACA officers.

This heading covers grounds 3.19 and 3.20 of the Petition of Appeal.

It is the complaint of the prosecution that the learned Sessions Judge erred when she failed to realize that even though the ACA officers may have been dealing with a case of the company’s frauds being embezzled by Tie Teck Yu instead of being used to bribe government officers, this did not mean that the company had no purpose to serve by bribing PW 1, because the learned Sessions Judge failed to appreciate that there were still ongoing investigations into the company and an acceptor or giver of gratification is still guilty, notwithstanding that the purpose was not carried out or the gratification was not in relation to the principal’s affairs or business.

I see nothing in the point taken. What the learned Sessions Judge was doing when she said what the prosecution complains about, was to look at the evidence adduced from all angles after the defence evidence was in. On of the assertions made by PW 1 in his evidence was that while he was recording Lim Piak Chu’s (PW 7’s) statement, the latter had wanted the ACA officers to speed up investigations and close the case in return for which the company was willing to pay PW 1 RM100,000.00. Given that assertion, I do not think it was wrong for the learned Sessions Judge to consider whether there could be any truth in the allegation of an offer of a bribe to close the investigations, when the company already knew since 23.06.2000 that the incriminating payment vouchers found on its premises had already been explained away as a case of criminal breach of trust, and therefore there was no purpose to be served in offering the alleged bribe. In my view the learned Sessions Judge was entitled to view the prosecution’s case from all angles after the defence evidence was in.

In the result for all the reasons given above, I do not find that the learned Sessions Judge had erred in law or in fact in acquitting and discharging the accused for the reasons given by her. Nor do I find that the learned Sessions Judge had failed to properly appreciate and evaluate the evidence led before her. I accordingly dismiss the appeal and affirm the decision of the learned Sessions Judge.